This guide contains information about special estate planning considerations for anyone who has immigrated into the United States. It will help you identify situations in which the right type of planning could make a big difference in someone’s life.
Protecting Parental Rights and Property Rights in Case of Deportation
Immigrants at risk for deportation (either because they have over-stayed a visa or entered the country unlawfully) could lose parental or property rights without proper documentation in place prior to deportation. Imagine, for example, that a single mother is pulled over for speeding and taken into custody for lack of documentation. Suppose that she is deported and decides to leave her children in the United States with a relative or friend. The children attend a public school, which requires the children to have a legal guardian in order to participate in school. A local court assigns a guardian to the children. Later, the mother contacts her relative or friend and asks that person to send the children to her. If that person refuses, the mother may no longer have the legal right to require that her children be sent to her. With basic documentation in place that assigns temporary custodianship of the children to a relative or friend, she would be able to maintain her parental rights. The same principle applies to any assets she may have left behind (paychecks, accounts, vehicles, property, etc.).
Avoiding Unneccesary Estate Taxes
Any non-citizen (except certain people who meet the residency requirements for purposes of the estate tax exemption) is subject to an estate tax threshold of only $60,000, instead of the $5.49 million (2017) exemption that citizens enjoy. If an immigrant has not yet obtained citizenship, that person could benefit from a tool called a QDOT, which is an estate planning document designed to delay tax consequences and give the individual time to obtain citizenship or establish residency before passing away. This planning could be especially applicable for non-citizens who pass away while outside of the United States.
Coordinating Plans Between Different Countries
Many people don’t realize that estate planning documents created in one country may not be recognized as valid in another country. Another potential problem could arise if a will or trust is in place in one country and a new will or trust is created in another country. Often, new estate planning documents revoke all prior documents. This could cause serious problems for heirs, not to mention the difficulty of conducting probate proceedings in more than one country. Immigrants who maintain assets both inside and outside of the United States need to make sure their plans are coordinated by counsel familiar with the laws of both jurisdictions.
By: Jacob A. Stewart, JD
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